The Midland Metro (Birmingham City Centre Extension Etc) Order
Messrs Winckworth Sherwood
Solicitors and Parliamentary Agents
35 Great Peter Street
Direct line: 020 7944 2483
Fax: 020 7944 2479
Web site: www.dft.gov.uk
Our Ref: TWA/03/APP/04
Your Ref: CMV/11152/13
9 June 2005
Transport and Works Act 1992
Town and Country Planning Act 1990
Applications for the proposed Midland Metro (Birmingham city centre extension, etc) order and for deemed planning permission.
1. I am directed by the Secretary of State for Transport ("the Secretary of State") to say that consideration has been given to the report of the Inspector, Mr A S Jeapes, CB OBE MC concerning the applications made by your clients, West Midlands Passenger Transport Executive ("Centro"), on 14 March 2003 for:
- the Midland Metro (Birmingham City Centre Extension, etc.) Order ("the Order") to be made under sections 1 and 5 of the Transport and Works Act 1992 ("the TWA"); and
- a direction as to deemed planning permission ("the planning direction") for the development provided for in the Order, to be issued under section 90(2A) of the Town and Country Planning Act 1990.
2. The Inspector held a public local inquiry into these applications between 2 December 2003 and 13 January 2004. Concurrently with that inquiry he held a public local inquiry into your clients' related applications for listed building consent under section 17 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Separate decision letters on those applications are today being issued on behalf of the First Secretary of State.
3. The Order, if made, would authorise the construction and operation of a 3.2 km extension to the existing Midland Metro light rapid transit system, which presently runs from Wolverhampton city centre to Snow Hill Station on the north-eastern edge of Birmingham city centre. The proposed extension would run from a point near the existing St Paul's Metro stop, past Snow Hill Station on a new viaduct, and then via Colmore Circus Queensway, Bull Street, Corporation Street, Stephenson Place, Stephenson Street, past New Street Station, along Pinfold Street, through Victoria Square, past the Grade I listed Town Hall, then along Paradise Street, Paradise Circus Queensway and Broad Street to Five Ways roundabout and a terminus at Hagley Road, Edgbaston. The proposed Order would also, amongst other things, confer on Centro powers to acquire compulsorily land and rights required for the construction and operation of the tramway, to alter and stop up streets, and to maintain apparatus in streets. The planning direction which has been sought would give deemed planning permission for the development provided for in the Order.
4. A copy of the Inspector's report of the inquiry is enclosed. His conclusions are set out in paragraphs 6.1.1 - 6.25.2 of his report.
Summary of the Inspector's recommendations
5. Subject to resolution of the two matters referred to in paragraph 6 below, the Inspector recommended in section 7 of his report that the Order be made, with modifications, and that planning permission be deemed to be granted, subject to conditions as amended in accordance with paragraph 6.17.2 of his report.
6. The Inspector made clear in paragraph 6.26.1 of his report that his recommendations were on the assumption that the Secretary of State had received confirmation that Travel West Midlands were content with any revised arrangements for implementing the Bus Mall; and that the NEC Group and Centro had reached agreement over limiting vibration impacts on the Symphony Hall.
Summary of the Secretary of State's decisions
7. For the reasons given in this letter, the Secretary of State has decided to make the Order, subject to modifications, and to direct that planning permission be deemed to be granted, subject to the conditions set out in the attached Annex. The proposed Order modifications and planning conditions are discussed later in this letter. This letter also discusses the action that has been taken since the inquiry to resolve the two matters referred to at paragraph 6 above.
8. In the separate decision letters referred to at paragraph 2 above, the First Secretary of State has decided to grant the related listed building consents, subject to conditions.
Secretary of State's consideration
9. Careful consideration has been given to all of the arguments put forward by or on behalf of the parties. The Secretary of State's consideration of the Inspector's report and of the further representations submitted after the inquiry in relation to the two unresolved issues identified by the Inspector, as referred to in paragraph 6 above, is set out in the following paragraphs. The relevant paragraph numbers of the Inspector's report are enclosed in brackets at the end of the section headings.
The need for and objectives of the scheme (3.3.1; 6.2.1-4; 6.12.1-3)
10. Centro described the objectives of the Birmingham City Centre Extension (BCCE) scheme as being to provide a high quality public transport service; to improve accessibility to and within Birmingham city centre; to provide an attractive alternative to private car use; and to support the economic, environmental and social objectives of Birmingham as a world class city.
11. The Inspector was satisfied that the BCCE scheme would provide a significant improvement in the quality of the city's public transport services, offering faster journey times and new journey opportunities. He considered that road congestion was a very real problem in Birmingham and that high quality public transport services were needed to provide a choice of modes and to encourage motorists to use other forms of transport. Furthermore, he considered that the BCCE would advance the regeneration of the city and would produce socio-economic benefits by improving public transport and access to jobs and services, particularly for deprived communities in the inner city and for persons whose mobility was impaired. The Inspector concluded that that there was no reason why the scheme should not achieve its objectives. He was not persuaded by the evidence of Mr C R Baldwin that the Midland Metro was already an out-of-date transport system and that the BCCE should be put on hold until different propulsion methods had been adequately developed and examined.
12. The Secretary of State accepts the Inspector's analysis of the need for the scheme, and he agrees that there is no reason why it should not meet its objectives. He agrees with the Inspector that the BCCE would bring clear transportation, regeneration and socio-economic benefits to the City of Birmingham.
Consistency with planning and transport policies (6.13.0-4)
13. The Inspector noted the national and regional planning policies which supported the BCCE scheme, as described in sections 3.9 to 3.10 of his report. In particular, he considered that the BCCE would improve sustainable transport links to the retail core of the city centre in accordance with PPG 6 and PPG 13; that it would be in line with the local planning and transport policies stated in the adopted and emerging Birmingham UDPs; and that account was taken of guidance in PPG15 in the planning of the Overhead Line Equipment (OHLE) and its means of support. The Inspector concluded that, overall, the scheme was fully consistent with national, regional and local planning and transport policies.
14. The Secretary of State agrees with the Inspector that the BCCE scheme is supported by planning and transport policies at the national, regional and local levels.
Consideration of alternative routes and justification for the selected route (6.13.5-8)
15. The Inspector noted the process through which the proposed route had been selected. Two preferred options (A and B) were identified and were subject to a major public consultation exercise in 1998. This consultation revealed strong support for the principle of the BCCE with a majority in favour of Option A. As a result of the consultation, the decision was taken to extend the Option A route to the Edgbaston shopping centre.
16. The Inspector considered that the major advantages of Option A over Option B were the shorter journey time, better integration with the city centre and New Street station, and lower cost. He considered that Option B would not serve the city centre as well and would produce a risk of delays from traffic congestion on Hill Street, together with a risk of substantial disruption to heavy rail services entering and leaving New Street station, because of the need to rebuild bridge structures. The Inspector also considered several alternative routes suggested by the Victorian Society, Paradise Circus Management Ltd and the Central Ladywood Neighbourhood Forum, some of which were variations of the two Centro Options, and some completely new suggestions. He concluded that, of all these, Option A was the most appropriate route to meet the stated objectives of the BCCE.
17. The Secretary of State agrees with the Inspector that, of all the options considered, Option A has been shown to be the most appropriate to meet the stated objectives of the scheme.
The case for the proposed compulsory acquisition powers (6.3.1-10; 6.14.0-4)
18. The Inspector noted that, as the BCCE was principally a highway based scheme, the extent of land affected by compulsory purchase was relatively limited; and that most of the non-highway land that would be acquired would only be needed for temporary use as construction compounds. In consequence, there had been little objection to the proposed compulsory purchase powers.
19. With regard to the objection from RT Group Developments Ltd (RTGD) to Centro's proposed acquisition of part of the proposed redevelopment site at Snow Hill, the Inspector noted the arguments put forward by RTGD but concluded that Centro's desire to retain the proposed 17.5m limits of deviation for the tramway corridor at this location was sensible and reasonable. Whilst RTGD may have to adjust its plans as a consequence, it was clear to the Inspector that the City Council gave priority to the needs of the BCCE. Although RTGD also proposed a number of changes to Centro's proposed planning conditions, the Inspector concluded against making any of those changes, which he considered were unnecessary.
20. More generally, the Inspector noted that the Order limits provided for the proposed alignment and for any reasonable deviations that might be required. He was satisfied that the compulsory purchase powers sought were the minimum necessary to achieve the successful implementation of the scheme and that they met the criteria set out in ODPM Circular 02/03: "Compulsory Purchase Orders". The Inspector concluded that there was a compelling case for the proposed compulsory purchase powers in the public interest. He further considered that the powers sought to stop up accesses permanently and to stop up streets temporarily were necessary for the proposed development.
21. The Secretary of State agrees with the Inspector that all the land that is subject to compulsory acquisition and temporary possession powers in the Order has been shown to be necessary for the scheme, and that there is a compelling case for giving those powers in the public interest. He is satisfied that the proposed compulsory acquisition powers meet the criteria set out in ODPM Circular 02/2003 and in its successor, ODPM Circular 06/2004.
Likely effects on local residents and businesses, other environmental effects and proposed mitigating measures (6.15.0-6.17.1 and 6.19.0-1)
- Local businesses (6.15.1)
22. The Inspector noted that the proposed route would run along several prime retail streets in the city centre and past a number of important business premises. He was satisfied that Centro recognised the importance of ensuring that these businesses remained able to operate during the construction of the scheme. He was also satisfied that the Code of Construction Practice ("CoCP") should ensure that noise, vibration and dust during construction would be kept within acceptable limits. The Inspector agreed with Centro that the completed scheme, together with the planned traffic reduction measures, would improve the vitality of local businesses by reducing congestion in the city centre and improving the general environment. The Secretary of State agrees with the Inspector that construction of the scheme should not give rise to unacceptable impacts on local businesses and that, in the longer term, the impacts of the scheme would be beneficial for those businesses.
- Residential developments and the pedestrian environment (6.6.1-7; 6.15.2-8)
23. The Inspector noted that the only significant existing residential development fronting on to the scheme was the apartments in Paradise Street, although other residential property off the route may be affected by traffic control measures during construction and afterwards. Residents of the "bCentral" apartment block had expressed concerns at the effects of the BCCE on the amenities of Victoria Square and on the space in front of the building, at the OHLE fixings to the façade, and at potential disturbance from noise. The Inspector concluded that the proposed reduction in the pavement width was not unreasonable, that the building would not be damaged by the fixing of brackets, and that any rowdiness by people waiting for trams was a matter for the appropriate authorities. Moreover, he considered that any re-routing of the tramway to avoid Victoria Square would have major disadvantages. Whilst he noted that several proposed residential developments would be close to the scheme, he concluded that once it was completed these sites would benefit from the improved accessibility offered by the Metro.
24. The Inspector noted that the scheme would run through retail and entertainment areas where the pavements were heavily used by pedestrians. Mitigation measures to reduce the impact upon pedestrians would include carrying out works in short sections and fencing the works. The CoCP would control dust and noise emissions. The Inspector also noted that in pedestrian areas where there would be little or no access traffic, and the roads would be used only by trams, cyclists and pedestrians, it was proposed to pave the full width of the street as a single surface, with the tram's swept path clearly marked so that pedestrians could see where it was safe to stand. Pedestrian access along the streets and to premises and frontages would not be affected. The Inspector concluded that the pedestrian environment throughout the scheme would be improved.
25. The Secretary of State agrees with the Inspector that any adverse impacts upon local residents and pedestrians following the implementation of mitigation measures would be within acceptable limits. He also agrees that the scheme, once implemented, would improve the pedestrian environment and improve accessibility for residents.
- Noise and vibration (6.15.9-13)
26. The Inspector noted that Centro would put various measures in place to reduce noise and vibration to a practical minimum. He acknowledged that the predicted worst case daytime construction noise levels, even with mitigation, would exceed the acceptable noise level in DoE advisory leaflet AL72. However, the Inspector accepted Centro's contention that this would be for only short periods of time, and that the noise levels would not be dissimilar from those experienced when statutory undertakers are carrying out excavation works in the highway as part of their routine activity. He concluded that the proposed mitigation measures would keep noise and vibration impacts to reasonable and acceptable limits during construction. Furthermore, the Inspector was satisfied that, during operation of the Metro, the additional noise from the trams would be insignificant because of the already high level of traffic noise along the whole route.
27. Subject to consideration, later in this letter, of the effect on the Symphony Hall, the Secretary of State agrees with the Inspector that the proposed mitigation measures would keep the impacts from noise and vibration within acceptable limits during construction of the scheme, and that there should be no significant noise or vibration impacts from operation of the BCCE.
- Construction compounds and work sites (6.15.14-16)
28. The Inspector noted that there were to be some temporary compounds within the Order limits, with other sites likely to be used as and when required, and that two larger compounds had been identified at either end of the extension. He was satisfied that the land to be taken, and the length of time it was to be occupied, would be kept to a minimum. He accepted that the two larger compounds were needed for long term storage of materials and equipment, and he concluded that all the proposed construction compounds and work sites were both suitable and necessary. The Secretary of State agrees with this conclusion.
- Landscape, townscape and visual impacts (6.5.1-5; 6.16.1-2; 6.18.1-11)
29. Whilst the Inspector had no reason to doubt that the scheme would be designed to a high quality to ensure that it complemented the existing townscape, he saw no reason to disagree with the assessment in the Environmental Statement ("ES") that there would be, even after mitigation, moderate negative visual and landscape impacts. Similarly, there would be short term negative impacts upon the setting of listed buildings and on the appearance of the Colmore Row and Environs Conservation Area. The Inspector noted that the scheme would introduce infrastructure such as tram stops and poles into important historical and architectural areas of the city centre, particularly around Victoria Square; and that the Iron Man sculpture in Victoria Square would have to be re-located.
30. The Inspector considered that the visual impact of the OHLE catenary on the setting of listed buildings would not be unacceptable, bearing in mind the locations of the buildings in the busy city centre, the reduction in street clutter which the scheme would bring, and the improvement upon the buildings' settings from the reduction in the number of vehicles using the roads. He considered that, overall, the settings of all the Grade II listed buildings would not be adversely affected and may even be improved.
31. The Inspector considered that the Grade I listed Town Hall with its setting was of particular significance to Birmingham, and he agreed that it was preferable for the OHLE equipment supports in the vicinity to be on poles. He considered that this was a location where visually intrusive structures should be dispensed with unless absolutely essential, in order to preserve the open and spacious setting of the Town Hall. The Inspector noted the concern of the Victorian Society about the visual impact of the proposed tram stop in front of the Town Hall. He sympathised with their request to move the tram stop as far to the west as engineering restrictions would allow, even if that were only 5m, and with their view that the shelter and related structures should be moved as far along the platforms to the west as possible; or, better still, that the shelters should be done away with altogether and the platforms left with minimum clutter. This would, however, be a matter for the City Council to consider when the details were submitted to them.
32. As regards impacts on the Conservation Areas, the Inspector noted that very little of the BCCE would affect the Jewellery Quarter Conservation Area and he was confident that its character and appearance would be preserved. Whilst a substantial part of the route would pass through the Colmore Row and Environs Conservation Area, he considered that the scheme would bring very substantial benefits - fewer vehicles, better accessibility, improved streetscape and a better and safe environment - that outweighed the disadvantages. He concluded that the scheme met the tests in sections 16(2), 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990; that it was in line with the policies of Commission for Architecture and the Built Environment and English Heritage; and that it met the criteria laid down in paragraph 3.5 of PPG15.
33. The Secretary of State is aware that ten related listed building consent applications have been made, nine for fixing OHLE brackets to listed buildings and the other to make changes to the façade of 128 New Street. The decisions on those applications are conveyed in the First Secretary of State's separate decision letter, referred to at paragraph 2 above. For the purposes of his consideration of the TWA Order, the Secretary of State has considered the potential impacts of the scheme on the setting of listed buildings in the City Centre and on the character and appearance of the Conservation Areas. He agrees with the Inspector that those impacts would be within acceptable limits, as would the impacts on the townscape generally. He appreciates that the potential impact on the setting of the Grade I listed Town Hall is a particularly sensitive matter and he draws the attention of Centro and the City Council to the Inspector's conclusions in that respect (6.5.3-5) for them to consider further when detailed designs are drawn up for the tram stop outside the Town Hall.
- Ecological impact and effects on nature conservation interests (6.16.3)
34. The Inspector noted that no statutory sites designated for their nature conservation value were on or adjacent to the proposed route. Should any protected species or species of interest be identified that might be affected by the works, Centro had assured him that appropriate mitigation measures would be agreed with English Nature and implemented.
- Air Quality Implications (6.16.4 - 6.16.5)
35. The Inspector noted that construction of the BCCE would give rise to dust emissions, exhaust gases from construction vehicles, and small increases in exhaust gases from congested traffic as a result of road closures. He considered that the increase in exhaust gases would be insignificant in a large urban area like Birmingham. The CoCP set out the proposed mitigation measures to limit the creation of dust and to monitor the results. The Inspector concluded that, since the Metro trams were electrically driven and the scheme would bring about a reduction in the number of cars in the city centre, the BCCE would bring about improvements in the local air quality in the city centre. The Secretary of State shares this view.
- Electro-Magnetic Interference and Stray Currents (6.16.6)
36. The Inspector noted that a proposed planning condition would require the BCCE to be constructed in compliance with the relevant legislation to ensure that it did not give rise to electro-magnetic interference or stray currents. The Secretary of State accepts that this matter should appropriately be regulated by a planning condition.
- Effects on Waterways (6.16.7)
37. The Inspector noted that the BCCE would cross canals at two places (the Farmer's Bridge locks at St Chad's and Gas Street Basin near Brindley Place), and that the existing bridges would be used. He noted that neither bridge was expected to require structural strengthening but, nonetheless, protective provisions had been agreed between Centro and the British Waterways Board. The Secretary of State is satisfied that those protective provisions are appropriate.
- Implications for Traffic (6.7.1-3; 6.8.1-4; 6.9.1-3; 6.16.8 - 6.16.9)
38. The Inspector noted that, during construction, traffic would be diverted temporarily along a series of routes described in the Traffic Management Strategy ("TMS") and the Transport Assessment, which would change as each work stage was constructed. The City Council's TMS was to displace traffic along the Metro route on to other routes, so that only essential traffic would enter the city centre. The Council's SATURN traffic model had calculated expected traffic flows on to all roads in and around the city centre, and the results conformed to the assessment in the ES.
39. The Inspector considered the objections receive from Mr D Bailey, Mrs L Murphy, Director of Symphony Court Management Association, and Central Ladywood Neighbourhood Forum in relation to the traffic management measures proposed in connection with the BCCE. He was satisfied that the City Council had examined the options for displaced traffic properly, using the appropriate traffic models and tools; that they would continue to monitor Sheepcote Street after the provision of the proposed traffic calming to see whether congestion could be reduced further; and that they and Centro were trying to resolve the problems in the Ladywood Ward. He considered that these objections related to the knock-on effects of the BCCE, rather than to the BCCE itself, and that the responsibility for managing Birmingham's traffic lay with the City Council as local highway authority.
40. The Secretary of State is satisfied that the City Council as highway authority has given, and will continue to give, careful consideration to managing the displacement of traffic as a result of the BCCE scheme. He does not consider that any of the objections to the proposed traffic management measures presents a convincing reason for not allowing the BCCE scheme to proceed.
- The adequacy of the Environmental Statement (6.19.1)
41. The Inspector was satisfied that Centro's ES complied with the requirements of the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2000, together with directives 85/337/EEC and 97/11/EC. The Secretary of State agrees. He is satisfied that the ES, together with the evidence subsequently adduced at the inquiry, provides him with sufficient information to assess the likely environmental impacts of the Order proposals; and he confirms that, in reaching his decisions, he has complied with the requirements of paragraphs (a) to (c) of section 14(3A) of the TWA.
42. For the purposes of section 14(3AA) of the TWA, the Secretary of State considers that the main measures to avoid, reduce and, if possible, remedy any major adverse environmental effects are those set out in the attached planning conditions and in the CoCP. He is satisfied that the proposed mitigation measures will reduce the adverse environmental impacts of the scheme to an acceptable level. To the extent that some residual adverse effects on the environment may remain, he is satisfied that these will be outweighed by the very clear long term benefits of the scheme.
Likely effects on statutory undertakers and rail services (6.20.1-2; 6.21.1)
43. The Inspector noted that all the statutory undertakers who objected to Centro's TWA Order application, apart from Cable and Wireless, had since withdrawn their objections following negotiated agreements with Centro; and that provisions had been added to the draft Order to protect the interests of statutory undertakers. He was satisfied that the BCCE would have no adverse effects on heavy rail operations at Snow Hill station.
44. The Secretary of State notes that, following the inquiry, Cable and Wireless withdrew their objection in a letter to him of 14 June 2004. Bearing in mind that all other objections from statutory undertakers were withdrawn following successful negotiations with Centro, he is satisfied that there should be no unacceptable effects on the carrying out of any statutory undertakings.
45. The Inspector noted that Centro's Initial Outline Business Case was approved in the December 2000 Local Transport Grant settlement; and that, while the benefit/cost ratio had since fallen from 1.25 to 1.1, Centro considered that the scheme continued to meet the Government's economic appraisal tests to determine eligibility for funding. The Inspector concluded that the BCCE was reasonably capable of attracting the necessary funding.
46. In determining a TWA Order application, the Secretary of State is concerned to establish that there is a reasonable prospect of funds being secured to meet the costs of implementing the scheme and its associated liabilities. He does not, however, expect applicants to have secured the required funds before the application is determined, and his decision to make an Order does not imply that any Government funding will necessarily be forthcoming, as that would be subject to a separate appraisal process. With this in mind, and without prejudice to any funding decisions that may subsequently fall to be taken, the Secretary of State is satisfied that the scheme is reasonably capable of attracting the funds necessary to secure its implementation.
Key issues not resolved at the inquiry
- The Bus Mall (6.4.1-3; 6.24.1-2; 6.26.1)
47. The Inspector noted that Travel West Midlands ("TWM"), the largest bus operator in the West Midlands, was a supporter of the BCCE. The complex problem for TWM of providing alternative routes for its buses displaced from Corporation Street and Upper Bull Street by the BCCE was to be solved by the introduction of a Bus Mall. However, following the opening of a new Bus Mall in August 2003, it had to be closed two months later on safety grounds. The Inspector considered that an efficiently-running Bus Mall which would free roads for the efficient running of trams was a key integral part of the BCCE. He could not recommend making the Order until a solution to the Bus Mall problem had been found which protected TWM's interests.
48. Following his receipt and consideration of the Inspector's report, the Secretary of State shared the Inspector's view that the Order should not be made until a solution had been found to the Bus Mall problem, which would allow buses to be relocated away from Corporation Street and Upper Bull Street, thus clearing the way for the efficient running of the proposed BCCE scheme. The Department therefore asked Centro, by way of a letter of 25 May 2004, for an update on the progress that had been made since the close of the inquiry in resolving this issue.
49. Following negotiations between Centro, TWM and Birmingham City Council, Centro submitted a report on 9 February 2005 stating that they, TWM and the Council had jointly agreed revised arrangements for the Bus Mall which would meet the current and future aspirations and objectives of the bus operators, Centro and the Council. The report provided details of the revised arrangements for the Bus Mall and confirmed that those arrangements had been approved by the Birmingham City Council cabinet on 10 January 2005. On 10 February 2005, the Department circulated Centro's report to those parties who attended the inquiry and invited comments on the revised arrangements for the Bus Mall. The comments received were then exchanged between the parties in March 2005 and further comments were invited.
50. In his consideration of this matter, the Secretary of State has taken into account Centro's report submitted in February 2005 and all the comments received in response to the Department's subsequent letters of February and March 2005. Having considered the views received, the Secretary of State is satisfied that suitable revised arrangements have been agreed for the Bus Mall, which would allow for the displacement of buses from Corporation Street and Upper Bull Street while protecting TWM's interests.
- The Symphony Hall (6.10.1; 6.24.1-3; 6.26.1)
51. The Inspector noted that work was being undertaken between Centro and the NEG Group to establish methods of limiting vibration to the Symphony Hall, in view of its acoustically critical nature. He considered that the Order should not be made until agreement had been reached on limiting vibration to the Hall.
52. The Secretary of State is aware that, since the inquiry, Centro and the NEG Group have successfully concluded negotiations regarding limiting the impact of the scheme on the Symphony Hall. As a result, the NEC Group formally withdrew their objection to the scheme on 4 March 2005. The Secretary of State is satisfied, in the circumstances, that the scheme would have no unacceptable impact on the Symphony Hall.
Inspector's overall conclusions and recommendations (6.25.1- 6.26.1; 7.3)
53. The Inspector concluded that the benefits of the BCCE scheme greatly outweighed the disbenefits and that there was no reason why the scheme should not achieve its stated objectives. It would also provide the City Council with an opportunity to rationalise and modernise the street furniture in those streets along which the Metro would run. He considered the number of objectors, when set against the population of Birmingham, was very small. The Inspector was also re-assured by the overwhelming support given by the City Council. Subject to the resolution after the inquiry of the issues addressed in paragraphs 47 to 52 above, he recommended that the Order should be made, with the modifications incorporated in the final modified draft Order submitted on 27 November 2003. He did not consider that any of the changes included in that draft amounted to a substantial change in the proposals within the meaning of section 13(4) of the TWA.
54. The Inspector also recommended that planning permission should be deemed to be granted for the development provided for in the Order, subject to the revised planning conditions dated 13 January 2004 (Annex U to his report), as amended to include the minor modifications set out in paragraph 6.17.2 of his report. He was satisfied that the revised planning conditions were reasonable and met the six tests laid down in DoE Circular 11/95 ("The use of conditions in planning permissions").
The Secretary of State's overall conclusions on the Order
55. For the reasons given in this letter, the Secretary of State agrees with the Inspector that this scheme is capable of achieving its stated objectives, as set out in paragraph 10 above. He is satisfied that the substantial transportation, regeneration and socio-economic benefits it would bring outweigh by some margin any adverse impacts on the local community or on the environment, which should be kept to an acceptable level by the proposed mitigation measures.
56. In relation to the two unresolved matters referred to in 6.26.1 of the Inspector's report, the Secretary of State is satisfied for the reasons given above that suitable agreements have been reached in relation to the revised Bus Mall arrangements and the limiting of vibration to the Symphony Hall.
57. Furthermore, the Secretary of State is satisfied that the particular powers sought by Centro in the Order, subject to the modifications described below, are reasonable, appropriate and justified in the public interest. Accordingly, the Secretary of State has decided to make the Order, subject to some modifications described below, and to issue a planning direction, subject to the conditions set out in Annex 1.
58. The modifications to the Order that the Secretary of State intends to make, in addition to those contained in your clients' revised draft of 27 November 2003 and recommended by the Inspector, are as follows:-
- to delete from Article 20 (Attachment of equipment to buildings for purposes of tramway) the reference to the specific matters which the magistrates' court should have regard to in determining whether consent to attach equipment has been unreasonably withheld by the relevant owner. The Secretary of State considers that the magistrates' court would be best placed to determine the matters that should be considered, and that their discretion to consider whether consent has been unreasonably withheld should be unfettered;
- to make amendments to Article 24 (mode of construction and operation of tram system) consequential to the Court of Appeal's judgement in Roe-v-Sheffield City Council and others (2002/0098). It is considered that the effect of that judgment is that tramway undertakers and street authorities are jointly liable for maintaining safety in the circumstances where a tramway is laid in a street. This amendment also makes Article 24 consistent with the equivalent provisions which apply to the rest of the Midland Metro system;
- to make amendments to Schedule 7 consequential on the coming into force of the Communications Act 2003; and
- to make certain minor drafting amendments which do not affect the substance of the Order.
59. The Secretary of State is of the opinion that these changes will not make a substantial change in the proposals.
60. With regard to section 5(6) of the TWA, the Secretary of State is satisfied that in every instance where the Order will authorise the extinguishment of a public right of way over land, either an alternative right of way has been or will be provided or that the provision of an alternative right of way is not required.
Planning Direction and Conditions
61. For the reasons given in this letter, the Secretary of State agrees with the Inspector's recommendation that he should direct that planning permission be deemed to be granted for the development for which provision is made in the Order, subject to conditions. The conditions he intends to impose are set out in Annex 1 to this letter. The letter conveying the planning direction will be issued shortly, at the same time as the Order is made. This will follow publication of a notice of the determination in the London Gazette.
62. The conditions generally follow those agreed between Centro and the local planning authority and recommended by the Inspector, subject to a few drafting changes that do not affect the substance of any condition. The only changes of significance are:-
- to aid clarity in interpreting certain of the conditions, definitions have been added of "the Order", "the limits of deviation" "local planning authority", and "the environmental statement";
- to amend, at your clients' request, the definition of "the development" to correct an error identified following the public inquiry. The original definition was too narrow for it to work correctly; and
- in condition 1, the setting of a separate (10 year) time limit for beginning the development of a tram stop at Snow Hill has been deleted as the Secretary of State considers this to be unnecessary. The condition as it remains would not require every individual item of development, including every tram stop, to be begun with 5 years.
Notice under section 14 of the TWA
63. A notice of the Secretary of State's determination given pursuant to section 14(1)(a) of the TWA is enclosed.
Challenge to decisions
64. The circumstances in which the Secretary of State's decisions may be challenged are set out in the note attached at Annex 2 to this letter.
65. Copies of this letter, the section 14(1)(a) notice and the Inspector's conclusions and recommendations are being sent to all those who appeared at the inquiry. Copies of this letter and the section 14(1)(a) notice are being sent to others who made representations about the Order application but who did not appear at the inquiry.
Head of TWA Orders Unit
Town and Country Planning Act 1990
The Midland Metro (Birmingham city centre extension, etc.) Order 2005
Conditions attached to the direction as to deemed planning permission dated 9 June 2005.
In these conditions, unless the context otherwise requires:-
"the development" means the works authorised by the Order, including the ancillary development identified in Schedule 1 to the Request for Planning Permission;
"the environmental statement" means the environmental statement accompanying the application for the Order submitted on 14 March 2003;
"the local planning authority" means Birmingham City Council;
"the Order" means The Midland Metro (Birmingham City Centre Extension, etc.) Order 2005;
"the limits of deviation" has the same meaning as in the Order; and
"stage" means each separate section of the development set out in Schedule 1 to the Request for Planning Permission.
1. Time Limits
The development hereby permitted shall be begun before the expiration of 5 years from the date that the Order comes into force.
Reason : To comply with section 91 of the Town and Country Planning Act 1990.
2. Design and External Appearance
Works of construction shall not begin in respect of any:
- tram stop;
- permanent boundary treatment;
- poles and brackets required to support the overhead line system;
- electricity substation and ancillary electrical equipment; and
- bridge or viaduct
until details of the design and external appearance of that element have been submitted to and approved in writing by the local planning authority. The development shall be carried out in accordance with the approved details.
Reason: To ensure that proper control is exercised over detailed design of the development
Details of materials to be used in any external surface of any:
- tram stop;
- permanent boundary treatment;
- poles and brackets used to support the overhead line system;
- electricity substation and ancillary electrical equipment; and
- bridge or viaduct
shall be submitted to and approved in writing by the local planning authority before that element of the development is commenced. The materials used shall be in accordance with the approved details.
Reason: To ensure satisfactory external appearance in the interests of visual amenity
Details of all proposed landscaping and the proposed times for the implementation of planting shall be submitted to and approved in writing by the local planning authority before the stage of the development to which the landscaping in question relates is commenced. All landscaping shall be carried out in accordance with those details and at those times. If, within a period of two years from the date of the planting, that planting, or any replacement planting, is removed, uprooted or dies, another plant of the same species and size as that originally planted shall be planted at the same place in the next available planting season, unless the local planning authority gives its written consent to any variation.
Reason: To ensure appropriate landscaping of the development
Development shall not begin until a scheme of archaeological investigation, covering that part of the route from Great Charles Street to Five Ways, has been submitted to and approved in writing by the local planning authority. All archaeological work shall be undertaken in accordance with the agreed scheme of investigation.
Reason: To ensure adequate protection and recording of archaeological remains.
6. Code of Construction Practice
Development shall not begin until Part 1 of the Code of Construction Practice has been submitted to and approved in writing by the local planning authority. Before any stage of the works begins, Part 2 of the Code of Construction Practice with respect to that stage shall be submitted to and approved in writing by the local planning authority. The development shall be carried out in accordance with Part 1 of the Code of Construction Practice, together with the relevant provisions of Part 2 of that Code.
Reason: To ensure adequate environmental protection during construction.
7. Contaminated Land
No stage of the development shall begin until a scheme to deal with any contamination of the land on which that stage will take place has been submitted to and approved in writing by the local planning authority. The scheme shall include an investigation and assessment to identify the extent of contamination and measures to be taken to avoid risk to the public and the environment when the works are carried out. No stage of the development shall begin until the measures approved in the scheme with respect to that stage have been fully implemented.
Reason: To ensure that any necessary site investigation and remediation works are undertaken in relation to contaminated land.
8. Highway Access
Details of the siting, design and layout within the limits of deviation of any new permanent means of access to a highway to be used by vehicular traffic, or of any permanent alteration of an existing means of access to a highway used by vehicular traffic, shall be submitted to and approved in writing by the local planning authority before the relevant stage of the development begins. The development shall be carried out in accordance with the approved details.
Reason: To ensure highway safety
9. Location of the Iron Man Sculpture
The proposed location of the Iron Man Sculpture, Victoria Square shall be submitted to and approved in writing by the local planning authority.
Reason: To ensure that the Iron Man sculpture is relocated to an appropriate location within Victoria Square.
10. Airborne Noise
The development shall be designed and operated in accordance with the Midland Metro Extension Noise and Vibration Policy 2003. For the purposes of Section 5 of the policy, Noise Mitigation at Source, the pre-existing ambient noise levels shall be those in Table 6.16 of the environmental statement, or from any later survey which has been agreed in writing by the local planning authority.
Reason: To minimise impact from airborne noise caused by the running of trams.
11. Ground-Borne Noise
Where the dominant source of noise is ground-borne, the following noise standards shall be applied to the development for the application of Sections 6 and 7 of the Noise and Vibration Policy:
- Inside noise sensitive rooms in residential buildings - LAmax,S40dB; and
- Inside noise sensitive rooms in offices - LAmax,S45dB.
Reason: To minimise impact from ground-borne noise and vibration caused by the running of trams.
12. Ecology Surveys and Mitigation
Before each stage of the development begins, check surveys for species of interest, as set out in Section 3.4 of the environmental statement, shall be undertaken. These surveys and details of any necessary programme of mitigation measures for any protected species affected by the development, shall first be submitted to and approved in writing by the local planning authority. The programme of mitigation measures shall be implemented in full.
Reason: To ensure that any species of interest are properly protected and appropriate ecology mitigation undertaken.
13. Electro-Magnetic Compatibility
The development shall be designed and constructed in accordance with the electro-magnetic compatibility standards set out in 'EN 50121, Parts 1 to 6: Railway applications - Electromagnetic compatibility', or any successor standards.
Reason: To ensure that the tramway does not give rise to unacceptable electro-magnetic interference.
Right to challenge orders made under the Transport and Works Act 1992 ("TWA")
Any person who is aggrieved by the making of the Order may challenge its validity, or the validity of any provision in it, on the ground that -
- it is not within the powers of the TWA, or
- any requirement imposed by or under the TWA or the Tribunals and Inquiries Act 1992 has not been complied with.
Any such challenge may be made, by application to the High Court, within the period of 42 days from the day on which the notice of this determination is published in the London Gazette as required by section 14(1)(b) of the TWA. This notice is expected to be published within three working days of the date of the accompanying decision letter.
Challenges to deemed planning permission given in connection with a TWA order
There is no statutory right to challenge the validity of the Secretary of State's direction that planning permission shall be deemed to be granted for development for which provision is included in the Order. Any person who is aggrieved by the giving of the direction may, however, seek permission of the High Court to challenge the decision by judicial review.
A person who thinks they may have grounds for challenging the decision to make a TWA Order or the decision to give a direction as to deemed planning permission is advised to seek legal advice before taking any action.